CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 15 décembre 2016

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LATVIA   (Application no. 47183/13)                 JUDGMENT     STRASBOURG   15 December 2016         This judgment is final but it may be subject to editorial revision.   In the case of Rakuzovs v. Latvia, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Erik Møse, President,   Yonko Grozev,   Mārtiņš Mits, judges, and Anne-Marie Dougin, Acting Deputy Section Registrar , Having deliberated in private on 22 November 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 47183/13) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr Nauris Rakuzovs (“the applicant”), on 1 August 2013. 2.     The applicant, who had been granted legal aid, was represented by Ms   J. Averinska, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce. 3.     On 18 September 2015 the complaint concerning Article 3 of the Convention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1984. He is currently serving a prison sentence in Valmiera. A.     The strip-searches of the applicant 5.     On several occasions between 2009 and 2011 the applicant was escorted to court hearings from various detention facilities where he was being held. During these transfers the applicant was subjected to strip-searches. According to the applicant, he was ordered to strip naked in the presence of other inmates and escorting officers, to assume embarrassing positions (squatting), and to submit to a visual inspection of his body. 6.     The strip-searches of the applicant were carried out on 9   December 2009, 8   and 11 June 2010, 22 February and 8 June 2011. B.     Domestic proceedings 7.     The applicant lodged several applications with the administrative courts concerning the strip-searches. They were all joined in one set of administrative proceedings (no.   A420533911). 1.     First round of administrative proceedings 8.     On 20 June 2012 the Administrative District Court ( Administratīvā rajona tiesa ) dismissed the applicant’s complaints and terminated the proceedings. It held that the strip-searches had been objectively justified on security grounds and the manner in which they had been conducted had not gone beyond what had been required to ensure the efficacy of those searches. Therefore these searches had not “significantly interfere[d]” with the applicant’s rights and had not constituted an “action of a public authority” (see paragraphs 17 and 18 below). The applicant appealed. 9.     On 13 September 2012 the Administrative Regional Court ( Administratīvā apgabaltiesa ) dismissed the applicant’s appeal and upheld the ruling of the lower court. 10.     On 5 November 2012 the Senate of the Supreme Court ( Augstākās tiesas Senāts ) quashed the ruling of the appeal court and remitted the case to the first-instance court. The Senate of the Supreme Court found that the strip-searches had had a legitimate goal, namely ensuring public safety, and had not been carried out in an abusive manner. However, the lower courts had not sufficiently addressed the applicant’s argument that he had been subjected to strip-searches in the presence of other persons. 2.     Second round of administrative proceedings 11.     On 27 February and 11 April 2013 hearings took place before the first-instance court. In order to clarify the facts eleven witnesses – seven escorting officers and four prisoners – were called. 12.     On 13 May 2013 the Administrative District Court dismissed the applicant’s complaints and terminated the proceedings. 13.     As concerns the strip-searches carried out on 9   December 2009, 8   and 11 June 2010, the court, on the basis of witness testimony, found that the applicant had been searched in the presence of one inmate and at least one additional escorting officer. However, taking into account that the applicant had not voiced any concerns in this regard during the first round of proceedings, the court concluded that “the strip-searches ... had not humiliated the applicant in the eyes of others or in his [own] eyes”. Accordingly, the court could not establish a “significant violation” of the human rights guaranteed under Article 95 of the Constitution and Article 3 of the Convention. 14.     As concerns the strip-searches carried out on 22 February and 8   June 2011, the court found that the evidence did not support the applicant’s allegation that he had been searched in the presence of other persons. The court dismissed the applicant’s further allegations (the presence of female officers, being exposed to the court’s staff and passers-by, unsanitary touching of his food) as unsubstantiated. 15.     On 9 July 2013 the Senate of the Supreme Court, by a final decision, dismissed the applicant’s appeal and upheld the ruling of the lower court. II.     RELEVANT DOMESTIC LAW AND PRACTICE 16.     Article 95 of the Constitution ( Satversme ) prohibits torture, as well as any cruel, inhuman or degrading treatment or punishment. 17.     The relevant parts of the Administrative Procedure Law ( Administratīvā procesa likums ), which took effect on 1 February 2004, have been summarised in the case of Melnītis v. Latvia (no. 30779/05, §§   24-26, 28 February 2012). 18.     To show the scope of review by the administrative courts in relation to strip-searches of prisoners, the Government referred to administrative proceedings no.   A8125609. In those proceedings, on 31 May 2010, the Senate of the Supreme Court had held that the administrative courts had been competent to examine prisoners’ complaints concerning “actions of a public authority” ( faktiskā rīcība ) if those actions “significantly interfered” ( būtiski ierobežo ) with their human rights. In order to establish a violation of a prisoner’s right not to be subjected to degrading treatment, the administrative courts had to evaluate the measure in its entirety, in particular the nature and the context, as well as the effect of the treatment; whether the aim of the treatment had been to debase or humiliate the person concerned; and whether the person’s suffering had gone beyond the inevitable element of suffering connected with this form of legitimate treatment. The allegations made by the person concerned also had to be examined. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 19.     The applicant complained that he had been subjected to strip-searches on 9   December 2009, 8   and 11 June 2010, 22 February and 8 June 2011 in breach of Article 3 of the Convention. 20.     Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 21.     The Government contested that argument. A.     Admissibility 22.     The Government argued that this complaint was manifestly ill-founded. 23.     The Court, however, finds that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 24.     The applicant complained that the strip-searches had not been justified and that they had been conducted in a humiliating manner, that is to say in the presence of other prisoners. He agreed with the Government that the strip-searches had had a legitimate purpose but contested the method and manner in which they had been carried out. 25.     The Government argued that the strip-searches had been justified and conducted in an appropriate manner. The domestic courts had established that strip-searches had had a legitimate purpose – to ensure prison security and prevent crime or disorder. 26.     The Court has examined the compatibility of strip and intimate body searches with the Convention in a number of cases (see, for example, Savičs v. Latvia , no. 17892/03, § 133, 27 November 2012, and the cases cited therein) 27.     Turning to the case at hand, the Court observes that the applicant’s complaint relates to the strip-searches carried out during his transfers to court hearings, which had been held outside prison premises (contrast with the Savičs case, cited above, where the applicant regularly underwent strip-searches within the prison premises). It is not disputed that the purpose of the strip-searches of the applicant in the present case had been to ensure prison security and to prevent crime or disorder. 28.     While the applicant considered that having to assume embarrassing positions (squatting) and being subject to visual inspection of his body had been humiliating, the Court notes that this, of itself, in the absence of any debasing elements which significantly aggravated the inevitable humiliation of the procedure, is not sufficient for the strip-searches to reach the minimum level of severity to fall within the scope of Article 3 of the Convention. The Court notes that the applicant’s main allegation pertaining to the method and manner of the strip-searches relates to the presence of other persons during those searches. In this respect, the Court notes that the Administrative District Court in the second round of proceedings called and questioned numerous witnesses who could attest to or rebut the applicant’s allegations. A conclusion was drawn that the applicant had been subject to strip-searches in the presence of one inmate and at least one additional escorting officer on three occasions (on 9   December 2009, 8 and 11 June 2010). The remaining two searches (on 22   February and 8 June 2011), however, had not been carried out in the presence of other persons. Lastly, the Administrative District Court dismissed as unfounded the remaining allegations made by the applicant (the presence of female officers, being exposed to the court’s staff and passers-by, unsanitary touching of his food). All these findings were subsequently upheld by the Supreme Court (see paragraphs 11-15 above). The Court cannot discern, and the applicant has not put forward, any convincing argument allowing it to disregard the findings of the domestic courts (see, for example, mutatis mutandis Giuliani and Gaggio v. Italy [GC], no. 23458/02, §   180, ECHR 2011 (extracts) as concerns the Court’s reliance on the findings of domestic courts). 29.     The Court observes that the applicant’s searches were carried out by escorting officers of the same sex. The Court sees no reason to depart from the domestic court’s finding that no female officers, court staff and passers-by were able to see the applicant naked. Nor is there any cogent reason to disregard the domestic court’s finding that there was no substance to the applicant’s allegation that his food had been touched in an unsanitary manner. Lastly, it has not been alleged that the escorting officers derided or verbally abused the applicant during the searches. These elements allow the Court to distinguish the present case from other cases, where it has found a violation of Article 3 of the Convention (see, for example, Valašinas v.   Lithuania , no. 44558/98, §§   117-118, ECHR 2001 ‑ VIII, and Iwańczuk v.   Poland , no. 25196/94, §§   58-60, 15 November 2001). 30.     It is true that three out of the five searches complained about were carried out in the presence of one inmate and at least one additional escorting officer. However, this element alone, in the absence of any other shortcomings in the manner in which the searches were carried out, cannot be considered sufficient for these actions to reach the minimum level of severity to fall within the scope of Article 3. 31.     The above considerations are sufficient for the Court to conclude that although the searches in question must have caused the applicant distress, that distress did not reach the minimum level of severity to fall within the scope of Article 3 of the Convention. 32.     There has accordingly been no violation of Article 3 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the complaint concerning the strip-searches admissible;   2.     Holds that there has been no violation of Article 3 of the Convention.   Done in English, and notified in writing on 15 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Anne-Marie Dougin   Erik Møse   Acting Deputy Registrar   President